1. Democracy and the rule of law
“A government by laws and not by men” This ancient legal maxim can be traced as far back as
Aristotle, who argued in the Politics that “it is more proper that the law should govern than any
of its citizen.”1 To secure ordered liberty, men have fought under the banner of Rule of Law
down through the ages, fortunately our documented history tell us otherwise. The rise of modern
democracy in the West has withered our understanding of the rule of law juxtapose
understanding the constitution and the role of Supreme Court in the Bhutanese political system.
Therefore it is crucial we understand the relationship between democracy and rule of law. As so
many distinctions have been drawn between the two terminologies, we restrict our write up to a
narrow distinction between “rule by law” and “rule of Law”. The rule by law explains that the
law is an instrument of the government simply put the government is above the law. Whereas
“rule of law” implies that everyone is bound by law including the government. For democracy to
thrive, adherence to rule of law is a necessity.2 In other words, Rule of law is a principle to
which a constitution and laws and judicial decision handed down under its authority should
conform. To attain this one must be clear that it is not dependent upon the democratic method as
in our system we have a small number of judicial officials who are capable of establishing and
maintaining the legal system which to its truest sense adheres to this principle. Of course, we in
Bhutan have adopted the democratic method as that best suited for the attainment of this goal.
Still our experience tells us that the method does not guarantee the desired result. What matter is
not simply who made the law, but what it is?
Rule of Law then may be said to exist not because of a popular assembly has enacted the
legislation but because the law which govern a particular society possess certain characteristic
which allow men to exercise liberty, enjoy the rewards of their labor, use their knowledge,
pursue virtue, communicate their thoughts and live under justice. Thus rule of law means that all
laws should be prospective rather than retrospective. 3 If rule of law is to prevail in our
1 Aristotle, Politics(Everyman ed.), Sec.1287a.
2 “The ruleof lawand transitional justicein conflictand postconflictsocieties”,23 August 2004, S/2004/616,
paragraph 6,recalled in “Deliveringjustice:programof action to strengthen the ruleof lawat the national and
international levels”,16 March 2012,A/66/749, paragraph 2.
3 Professor fuller offers eight principlesof ruleof law

2. constitutional democracy the laws of the Parliament and the decision of the courts should
conform to certain principles, not all of which are spelled out in the fundamental law.
In the quest for Rule of law, the judges have traditionally played a unique and prominent role by
creating laws that embody the principles of certainty, generality and equality but the endeavor to
establish Rule of law does not stop here, for once the law has been enacted , it must thereafter be
enforced and applied to a particular circumstances. Enter now the judges, who must work with
the laws they have received from the lawgivers. Through their interpretation and application of
the law, the law making process is thereby completed and the rule of law maintained. Rule of
law is more than simply the making or creation of law, its application must also be taken into
account, if certainty, generality and equality are to prevail over the long run. For this reason, a
judiciary, the guardian of the law is essential to the Rule of Law. Without trained judges versed
in the philosophy and the science of jurisprudence, Rule of law is possible, but unlikely. But
more importantly, the judges must follow basic rules of interpretation if through the application
and enforcement of law certainty, generality and equality are to be attained.
A practical example of the importance of the rule of law for democracy building is the fact that
the rule of law is a fundamental principle embraced in most modern democracies. Constitution
contains the fundamental and the rule of law dictates the enforcement of those principles above
all other laws.4
Role of new judiciary in democratic
A democratic society should have system of accountability where holders of public office, such
as legislators, electoral official and political leaders, are accountable and answerable to the
public for their decisions and actions. Public officials must be kept in check to guard against bad
governance and these calls for separation of powers between the executive, legislature and the
judiciary. In a constitutional democracy, the doctrine of separation of powers permits dialogue
between the three branches of government-the legislature, judiciary and executive- in order to
achieve the goals set by the drafters of the constitution.5 The judiciary has the power to
4 International IDEA, A practical Guide to Constitution Building: Principle and cross-cutting Themes, Stockholm
2012,pages 17-18
5 N Barber “Prelude to the separation of powers (2001) 60 Cambridge Law Journal 59 71;
P Kurland “The riseand fall of the doctrineof separation of powers’(1986) 85 Michigan law Review 592 603.

3. determine whether the legislature and the executive are performing their duties in accordance
with the constitution.6 Judicial power acts as a deterrent to the abuse of people‘s democratic
right. The judiciary must use its power to sanction excesses committed by the legislature and the
executive so as to administer Justice fairly and independently without fear, favour, or undue
delay in accordance with the Rule of Law to inspire trust and confidence and to enhance access
to Justice thereby promoting ‘a just, free and democratic society’.7
The judiciary can and should play a fundamental role in the promotion of democracy. 8Judges
especially in the higher courts, occupy a special position in a democratic society. The
constitution provides that the judicial power is vested in the Royal Court of Justice.9 The
constitution establishes courts as the bastion in the defense of the people against oppressive and
unjust laws and practices. The courts must protect fundamental human rights and freedoms
which, as pointed out above are a corner-stone of democracy. The constitution permits any
person who claims that his or her human right or freedom has been infringed or is threatened, to
apply to a competent court for redress.10 The courts must view their role in terms of securing a
better society for all people, even if this means overstepping the traditional dividing line between
the political branches of the government and the judiciary. The Courts must keep the
government faithful to the goal of democracy. 11 Therefore the independence of judiciary calls
for innovation on the part of the judges, who ‘should not wait for each and everything to be
delivered to them in the form of laws and by-laws. They require imagination in the process of
dispensing justice.’12 Judges therefore be able to embrace the concept of judicial activism by
moving away from the practice of defining their role narrowly and technically of being judicial
restrained activism.
The independence of Judiciary is paramount in the promotion and sustenance of democracy and
is guaranteed by the Constitution. The constitution created an independent and impartial
6 JN Nolan et al (eds) Black’s lawdictionary (2010) 849.
7 Art 21(1) of the Constitution
8 A Barak The judge in a democracy (1989); J Dugard ‘Judging the judges: Towards an appropriateroleof the
judiciary in South Africa’s Transformation’(2007 Leiden journal of international law 20.
9 Art 21(2) of the Constitution
10 Art 7(23) of the Constitution
11 On the importance of the judiciary,especially theSupreme Court as the guardian of the Constitution and the
promoter of the good governance and democracy in Bhutan see eg the Judgment of SC in OAG v. Opposition
12 CM Peter Human Rights in Tanzania: Selected cases and material (1997) 484.

4. judiciary with the mandate to interpret, protect and enforce the constitution. According to the
constitution, the court shall, in the exercise of judicial power administer Justice fairly and
independently without fear, favour, or undue delay in accordance with the Rule of Law to inspire
trust and confidence and to enhance access to Justice. Surprisingly the constitution does not
provide in clear terms that while exercising the judicial functions, no authority or person can
interfere nor it has stated that the other organs and agencies of the state to accord to the court
necessary assistance to enable the courts to discharge the functions. The primary objective of
guaranteeing the independence of the judiciary is to ensure the effective maintenance of law and
constitutional orders so that there is no necessity or justification for a resort to extra-judicial
means in the resolution of political dispute. 13
13 Government of Bhutan v Opposition Party,imposition of Tax 2011